By Jeffrey A. Roberts
CFOIC Executive Director

KOAA-TV is entitled to unredacted records concerning employees at the Colorado Mental Health Hospital in Pueblo, a judge ordered this week, rejecting a state agency’s claim that disclosure of their names is prohibited by the “personnel files” exemption in the Colorado Open Records Act.

Last fall, reporter Alasyn Zimmerman asked the Colorado Department of Human Services for applications and other records of hospital employees who had been placed on administrative leave, pending an investigation, since the start of 2021.

Although applications of state and local public employees are specifically excluded from CORA’s definition of confidential personnel files, the department redacted names and other identifying information from the records, asserting the employees “have a legitimate expectation of privacy” in the investigative process.

But Pueblo County District Court Judge Timothy O’Shea on Sunday concluded that the denial “was not proper.” First, he noted case law in which the Colorado Court of Appeals required the disclosure of employees’ names in records that are carved out of CORA’s personnel files definition.

O’Shea then examined whether the hospital employees have a legitimate expectation of privacy, citing a 1999 Court of Appeals ruling. To be classified as closed “personnel file” information, the information must be “of the same general nature” as an employee’s home address, phone number and personal financial information, the appellate court decided in that case.

The “mere fact” that an employee is or was the subject of an internal review into their official conduct is not “of the same general nature as an employee’s home address and telephone number or personal financial information,” the judge wrote.

“The Court concludes that the fact that an employee was placed on investigatory administrative leave, without more, does not actually implicate the employee’s right of privacy and the protection for personnel files,” he added.

O’Shea also ordered the Department of Human Services to pay KOAA “reasonable” attorney fees and costs — an amount to be determined — deciding that the agency did not properly invoke a CORA provision that lets governments seek judicial clarifications of the law.

Custodians may go to court if they cannot, “in good faith, after exercising reasonable diligence,” determine whether the release of certain records is prohibited. If a judge finds that the custodian truly wasn’t sure about disclosure, the records requester cannot recover attorney fees.

But even though the human services department asked for a judicial clarification, “there is no evidence in the record that the Department was ever unable to make a disclosure determination,” O’Shea wrote in his order.

“Rather, the request was denied because the Department, in good faith, and after exercising reasonable diligence and making reasonable inquiry, determined conclusively that disclosure of the public records sought by KOAA is prohibited under CORA’s personnel files exemption,” he added. “…Therefore, the attorney fee provision of (CORA) applies.”

Media attorney Steve Zansberg, who is president of the Colorado Freedom of Information Coalition, represented KOAA in the litigation.

Follow the Colorado Freedom of Information Coalition on X (formerly Twitter) @CoFOIC. Like CFOIC’s Facebook page. Do you appreciate the information and resources provided by CFOIC? Please consider making a tax-deductible donation.